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A Semi-Objection to Bruce Cain’s Semi-Case for Semi-Disclosure

Bruce Cain has picked an odd time to raise concerns about the dangers of disclosure. It comes as we have just completed a record-breaking $4 billion midterm election season, after the Supreme Court, lower courts, and the Federal Election Commission have freed corporate and union money from longstanding campaign finance limits, and after political committees and other political groups have found ways to avoid effective disclosure of their contributors. The conversation should be about why we need more disclosure, not less, and why it is that Congress is unlikely to restore effective disclosure laws in time for the 2012 elections.

Cain’s concern is different: he worries that excessive disclosure, especially in the Internet era, will chill political speech, and that attempts to reimpose effective disclosure laws are motivated by an improper desire to equalize the amount of political speech. He calls for a system of “semi-disclosure,” whereby certain campaign finance data is disclosed to campaign finance regulators but not to the general public. In this brief response, I make three points. First, in offering his analysis, Cain understates the value of disclosure. Second, Cain is surely right that the Internet era does change the constitutional calculus, which is why scholars supporting campaign finance regulation, including Richard Briffault and me, also support the kind of system Cain suggests. Third, the most significant roadblock to Cain’s suggested reform, as shown by John Samples’s response in this symposium, is the fear by conservatives of government audits as a substitute enforcement mechanism.

The Benefits of Disclosure Laws

Briefly, as I have recently explained, disclosure laws serve three important social interests. First, disclosure laws can prevent corruption and the appearance of corruption. Second, disclosure laws provide valuable information to voters. Third, disclosure laws help enforce other campaign finance laws.

I don’t read Cain’s essay as rejecting the point that we need to restore effective disclosure laws to provide voters with valuable information. He recognizes that busy voters rely on a cue, such as whether a ballot measure or candidate is supported by the oil industry or the Sierra Club, to make informed decisions about how to vote. He believes, however, that aggregate data provided by the government can provide the information for the cue. He writes: “While one could imagine the value in knowing that candidate Jones gets most of his money from oil companies, doctors, or the SEIU, there is little or no informational gain from knowing the specific names and home addresses of the company executives, doctors, or union members who make the contribution.”

The problem with this analysis is that it relies upon the government to aggregate these data. Right now, the only contributor information provided to the Federal Election Commission comes in the form of the name, address, occupation, employer, and amount contributed by those contributing at least $200 to a committee. Unless the government requires additional information, such as union membership, the cue is going to be of only limited usefulness. Today, in contrast rival campaigns, the media, and members of the public can slice and dice the data however they want, including matching the public data with other databases, to get reliable analysis.

More importantly, Cain undersells the anticorruption and enforcement rationales for campaign finance disclosure. Cain believes that campaigns raise spurious and exaggerated charges of corruption, and that the $2,400 individual contribution limitation to a campaign assures that no candidate can be corrupted by such paltry figures. Cain is still thinking in a pre-Citizens United world of unlimited contributions to independent expenditure committees. In a world of secret contributions, I could give $1 million to Americans for America to be used solely to support my favorite member of Congress. The law does not prohibit the contributor from disclosing the contribution to her favorite member of Congress, but all the public would know is that Americans for America spent $1 million on the ads. We need to have rival campaigns, the press, and the public out there, more than ever, as watchdogs to make sure that the member of Congress has not done something in exchange for the contributor’s money. In short, in a world of unlimited contributions to committees to benefit candidates, disclosure is the only (albeit imperfect) anticorruption tool.

The same point applies to enforcement. One way to police that campaigns are not taking illegal contributions (such as contributions from foreign non-residents) is to place the information in the public sphere and allow competitors and others to view it. In the last presidential election, that’s exactly what happened, and it helped keep campaigns honest.

Note that these arguments do not depend one whit on any equality rationale to support disclosure, or any attempt to discourage speech. Though Cain talks about a “clear,” “implicit agenda” on the part of reformers to discourage speech, he should not paint with so broad a brush; it is certainly not my agenda. (I’d note too that I called for the ability to audit the Obama campaign to make sure there was not a problem with accepting small foreign contributions, belying Cain’s point that reformers did not raise issues about disclosure until Republicans were the ones not doing the disclosing.)

The Costs of Disclosure

Though Cain is wrong in understating the benefits of disclosure, he is right that

disclosure can come at a cost, especially in the Internet era. As I recently explained,

No longer is it necessary to trudge down to a government office to wade through disclosure reports. With a Web site like Fundrace, you can plug in your home address (or any address) and see to whom (and how much) your neighbors have donated in federal races. Same-sex marriage advocates created Eightmaps to find Californians who donated to ‘Yes on 8,’ as in Proposition 8, the ballot measure outlawing gay unions.

There certainly have been allegations of harassment of small contributors to controversial campaigns, but many of these remain unproven, minor, or not really harassment. But the Supreme Court has developed a more pinpointed way to deal with this problem: allowing for those who can show they are likely to face harassment for having their identities disclosed to obtain an “as-applied” exemption from the law.

Even with this exemption, it does make sense to raise the threshold for reporting individual contributions because there is little social benefit in public disclosure of the names of these contributors. But this is an idea on which reformers and Cain agree.

Noted campaign finance scholar Richard Briffault has called for greater use of reporting to government agencies and less use of public disclosure as to small contributors. I endorsed that view as well during the 2008 campaign, when there were questions raised as to foreign contributions to the Obama campaign: I suggested that instead of public disclosure of small contributors, campaigns should face audits, an idea to which I now turn.

The Pushback on Audits

Cain too advocates audits as better than public disclosure of much contributor data. For reasons I’ve explained above, I don’t think audits could substitute for disclosure of all campaign finance data, but I do support such audits to deal with the problems of small contributors and those who would face harassment.

But a call for audits, as I learned, is quickly met with resistance from conservatives. John Samples suggests that audits could become tools for political retribution, and when I pushed for audits of the 2008 Obama campaign, a commissioner of the Federal Election Commission expressed concern that any data coming into the agency could be subject to a Freedom of Information Act request.

Whether concerns about abuses of the audit process are legitimate or not, fear of audits would be a talking point against Cain’s argument for semi-disclosure. I fear that Cain’s proposal would morph into semi-semi-disclosure, whereby the information would be sent to the government, with no public disclosure and no ability to audit. It will further lead us into the brave new world of campaign finance deregulation.

Also from This Issue

Bruce Cain’s lead essay calls for a compromise on campaign finance disclosure. We want many things from our election law, he notes – the freedom to speak, a process that both is and appears to be just, a well-informed electorate, and protection for the holders of controversial opinions. Cain suggests semi-disclosure as a good way to get most of what we want. He advocates “the full reporting but only partial disclosure of campaign donor information.” Semi-disclosure of the type Cain suggests is already used in the release of census data, where individual privacy is respected even while demographers gain valuable information from the aggregate. Giving voters information about campaign contributions without giving them donors’ names would allow voters to consider the nature of a candidate’s or a measure’s supporters while shielding those supporters from personal attack, Cain argues.

In his response essay, John Samples notes that disclosure discourages people from participating in the political process. When someone decides not to do something, that decision is all but invisible to researchers who might wish to study it. Disclosure also shifts attention from the content of speech to the identity of the speaker, which is not necessarily the best basis for decisionmaking. The paternalism of disclosure is also a problem, as he sees it: the government appears to be trying to keep you from hurting yourself, even if you decline to fulfill your responsibilities as a citizen by examining the issues on their merits.

In her response essay, Nikki Willoughby argues that anyone who opposes full disclosure of donors’ identities probably has something to hide. Spending money isn’t speech; it’s a commercial transaction, and thus regulable under our law. Moreover, even if campaign finance were a matter of speech, some speech always has been subject to regulation, including slander, libel, and speech that incites imminent acts of violence. We should likewise regulate speech that imminently threatens our democracy, by mandating that sources of such speech are disclosed. Secrecy destroys trust in government, driving citizens away from political participation. Openness wouldn’t chill participation – openness would encourage it.

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